Additional years for violent offences against children

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The process has begun. There is now a bill before Parliament, which is called the Criminal Justice (Administration) (Amendment) Act, 2016, which aims at strengthening the punishment of offenders for serious violent offences committed against persons under 18 years of age at the time of the commission of the offence.

The purpose of the amendment to the principal Act (The Criminal Justice (Administration) Act is to impose on the convicted person an additional term of imprisonment to the term of imprisonment that may be imposed on the convicted person for that offence, called the original penalty.

The limit of the additional penalty is set at 10 years' imprisonment. It is proposed that the additional penalty of up to 10 years' will apply only in circumstances where life imprisonment is not imposed as the original penalty for the particular offence. However, where life imprisonment is imposed, the minimum period which the person shall serve before becoming eligible for parole shall be increased by 10 years.

The provisions for additional penalty apply to various serious offences against the person, as outlined in the Eight Schedule attached to the bill. Those offences include murder, wounding or shooting with intent, abduction, kidnapping, administering poison, sexual offences and buggery.

A striking provision of the bill, however, relates to inchoate offences, which, essentially, may be described as 'incomplete' or 'undeveloped' offences. They are also described as preliminary crimes or inchoate crimes. Inchoate crimes are conduct deemed criminal without actual harm or damage being done to the victim. In essence, they include the attempt to commit a substantive offence. Some of the inchoate offences expressly included in the bill are attempting to commit murder, attempting to shoot with intent to do grievous bodily harm and attemptting to commit buggery.

An important question that arises for consideration is: what, in law, is an attempt to commit a criminal offence? An attempt to commit an offence requires the requisite mental element, the mens rea, as well as the actus reus, which is, simply put, the physical action or state of affairs that results in the prohibited act or conduct.

OFFENDER'S INTENTION

The intention to commit the substantive or actual offence is the mens rea needed to ground an attempt. In determining the intention of an offender, prosecutors could get useful help from communications between the parties on social media, such as WhatsApp and Facebook. Deletion of incriminating social media communications will not help the offender as the government agencies are usually equipped with sophisticated recovery tools to recover deleted social media communications.

With respect to what may be described as the physical action or the actus reus, it seems to be settled law that the actus reus "must be more than merely preparatory". A good example of what might be merely preparatory was demonstrated in the English case of R. v Geddes where it was said that a man who had intended to kidnap a young person from a school was found in the bathroom with a large knife, rope and a roll of masking tape. The English Court of Appeal found, however, that that was not enough to ground a conviction. No doubt, police officers and prosecutors must be careful to have the case 'ready' before they move forward with an arrest and prosecution for an inchoate crime.

If the law is passed, those who take steps to commit any of the specified crimes on children are likely to face stiffer penalties than before, which means longer prison time. So, to those who take steps in breach of the criminal law and then turn around and say that it was only a joke, the joke will be on them, in the long run, where children are involved as victims. It is no joke to spend 10 additional years in prison in Jamaica. If this bill should pass into law, 'joking' with our children should, therefore, become a thing of the past.